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USMC | DRB | 2009_Marine | MD0900774
Original file (MD0900774.rtf) Auto-classification: Denied

ex-, USMC
Current Discharge and Applicant’s Request
Application Received: 20090219
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MARCORSEPMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         USMCR (DEP) 19990129 - 19990601         Active:           19990602 - 19990828 ELS
                                             20010619 - 20010713 HON
Period of Service Under Review:
Date of Reserve Enlistment: 19990602     Age at Enlistment:
Period of Reserve E nlistment : Years Months
Date of Discharge: 20040226      H ighest Rank:
Length of Reserve Service : Y ea r ( s ) M on th ( s ) 25 D a y ( s )
Education Level:        AFQT: 78
MOS: 3531
Proficiency/Conduct M arks (# of occasions): 4.6 ( 9 ) / 4.5 ( 9 ) [Through 20021231 only] Fitness R eports:

Awards and Decorations ( per DD 214):      Rifle

Periods of UA / CONF :

NJP: SCM: SPCM:

CC:

- 20031021 :       Offense: Felonious Theft of Identity
         Sentence : 18 months probation, $1414 fine and fees; $2994 restitution.

Retention Warning Counseling :

- 20031116 :       For commission of a serious offense of a felony conviction for theft of an identity.

Types of Documents Submitted/reviewed

 Related to Military Service:
DD 214:      Service / Medical Record: Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
Additional Statements :
From Applicant:         From Representat ion :   From Congress member :

Other Documentation :



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Reenlist in the Or ego n Army National Guard.
2. Request for an Uncharacterized discharge.
3 . Post-service conduct.

Decision


 Date: 20 0 9 0521            Location: Washington D.C .         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT .
Discussion

 : ( ) . either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , , regarding .

: ( ) . The Applicant requested her characterization be changed to Uncharacterized. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service was marred by one retention warning counseling but clear of any misconduct resulting in NJP or court-martial. However, she was convicted and punished by a civilian court for a class C felony – t heft of identity. S uch charges in a civilian court of law are consistent with violation of the Uniform Code of Military Justice and punishable per the Manual for Court s- Martial. This felony is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentenc e by a special or general court- martial. Per p aragraph 1004.4d of the Marine Corps Separation and Retirement Manual, a dministrative s eparation in the case of a member of the Select Marine Corps Reserve is only authorized if such conduct affects the performance of military duties, which it did in the Applicant’s case. Due to the Applicant’s probation, and specifically, her restriction to the State of Oregon, the Applicant was prohibited by law to travel to her reserve unit in Spokane, Washington, and serve as a member of the Select Marine Corps Reserve. O f more significance, she was not world- wide deployable. Additionally, the nature of her charge and conviction created a significant concern with the unit pertaining to personal information security. Due to the nature of the conviction, the Applicant’s non-deployable status, and the potential personal information threat she poses, it was in the best interest of the Marine Corps that she was discharge d from service.
For the Applicant’s edification, members with less then 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service unless there were unusual circumstances regarding a service member’s performance or conduct that merit another characterization. The Applicant had over 180 days of enlistment time and is not eligible for an uncharacterized discharge. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of disciplin e in the United States Marine Corps. The evidence reviewed supports the conclusion the Applica nt committed a serious offense and separation from the Marine Corps was appropriate . The Board determined the awarded discharge characterization of Under Other Than Honorable Conditions was appropriate, and an upgrade would be inappropriate.
Issue 3 : ( ) . The Applicant requested the NDRB to consider her post-service conduct in support of her request for an upgrade in her characterization to Uncharacterized. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to help support a post - service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutio ns; and documentation of a drug- free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is rev iewed by the Board on a case-by- case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.
Besides the Applicant’s statement on the DD Form 293, she provided five character references letters, college transcripts and circuit court documentation on her behalf. While the Board applauds the Applicant for taking accountability for her actions, significant improvement in maturity and judgment , and continuing her education, the Board determined the evidence of post-service conduct was not sufficient enough to warrant an upgrade of her discharge characterization. To warrant an upgrade the Applicant’s post - service efforts need s to be more encompassing. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the charact erization of service received, Under Other Than Honorable Conditions , was an appropriate characterization considering the length of service , the UCMJ violations involved , and the limited post- service documentation provided , and an upgrade would be inappropriate.
Should the Applicant obt ain additional evidence or post- service documentation s he may wish to apply for a personal appearance. There a re veteran's organizations, such as the American Legion, willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

 A. Paragraph 6210, MISCONDUCT of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 1 September 2001 until Present.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction before submitting such a complaint. The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness. You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the date of discharge. The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court-martial fo r misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.
Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

 Secretary of the Navy Council of Review Boards
 Attn: Naval Discharge Review Board
 720 Kennon Street SE Rm 309
 Washington Navy Yard DC 20374-5023

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